Holding

The decree is executable; the Market Committee must allot the vacant site, even over the drain, subject to the plaintiff’s undertaking to prevent seepage and unhygienic conditions.

Summary

The appellant, P. Varadarajulu, sued the Agricultural Produce Market Committee for renewal of his licence and allotment of a vacant site in the market yard as specified in the decree. The decree ordered the committee to allot the site between plot numbers 10‑C and 11/2, but the committee contended that execution was impossible because a two‑foot drainage channel occupied part of the land. The High Court, relying on an Advocate‑Commissioner’s report, held the decree non‑executable and dismissed the execution petition. On appeal, the Supreme Court examined the sketch map and found sufficient land remaining, even after excluding the drain, to satisfy the decree. The Court directed the committee to allot the site, allowing it to be over the drain, provided the appellant gives an undertaking to prevent seepage and unhygienic conditions, which would be incorporated as a condition of allotment. The appeal was allowed and the matter was ordered to be resolved within six weeks.

Issues considered

Whether a decree directing allotment of a market yard site is executable when a drainage channel occupies part of the specified area.
Whether the Market Committee can be compelled to allot the site subject to an undertaking by the plaintiff to prevent unhygienic conditions.
Whether the High Court erred in interpreting the Advocate‑Commissioner’s report and in holding the decree non‑executable.

Legislation cited

Code of Civil Procedure, 1908s. 115

Subjects

Allotment of market yard siteExecution of decreeDrainage obstructionUndertaking conditionAgricultural Produce Market CommitteeCivil ProcedureSection 115 CPC

Judgment

• P. VARADARAJULU A
v.
AGR!CUL TURAL PRODUCE MARKET COMMITTEE

APRIL I, 2004

[DORAISWAMY RAJU AND ARIJ!T PASAYAT, JJ.] B

'--I, Agricultural Produce Market Committee:

Allotment of site-Suit for-Decreed-Execution-Stand of Market
Committee that site specified in plaint and the decree could not be allotted c
because of drainage at the site-Plaintiff willing to accept the site and to give
an undertaking to take preventive steps-Held, Market Committee would allot
the site and would incorporate the undertaking by the plaintiff as one of the
conditions for allotment to be made.
D
Appellant filed a suit against the respondent, an Agricultural Produce
. ..., Market Committee, for renewal of licence in his favour and for allotment of
a vacant site in the Market Yard as specified in the plaint. The suit was
decreed. In the execution proceedings the defendant reiterated its stand that
the site could not be allotted. The High Court in the revision filed by the
defendant, appointed an Advocate-Commissioner who reported that the E
decree could not be executed because of existence of drainage on the spot.
Before the High Court, the plaintiff submitted that he was willing to accept
the space and gave an assurance that there would be no escape of drain water
and no inconvenience would be caused and if any unhygienic condition was
created he was willing to accept the alternative allotment. The High Court
~ >- held that the decree was not executable. Aggrieved, the nlaintiff filed the
F
present appeal.

Allowing the appeal, the Court

HELD: The basic issues have been lost sight by the High Court. The
sketch map annexed to the report of the Advocate-Commissioner shows that G
though there is a drain which is of about two feet width, there exists sufficient
,.. space and extent of land, even excluding the drainage portion, for satisfying
the decree. The Market Committee would allot the said vacant space in terms
of the decree as indicated in the sketch map. The statement on behalf of the
679 H
680 SUPREME COL!R"I REPORTS [200.J] 3 S.C.R.

A appellant regarding preventive steps to be taken to a\'Oid seepage of drain
water and non-creation of unhygienic condition as made before the High
Court, shall be incorporated in an undertaking and it would be one of the
conditions for the allotment directed to be made.1681-G; 682-A-BI

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. I 959-1960
B of 2004.

From the Judgment and Order dated 26.5 .2000 of the Karnataka High
Court in C.R.P. No. 3268/94 and Order dated 22.3.2002 in R.P. No. 750 of
2000.

C M.S. Ganesh and Nikhil Nayyar for the Appellant.

E.C. Vidya Sagar for the Respondent.

The Judgment of the Court was delivered by

D ARIJIT PASAYAT, J. Leave granted

A small matter which could have been sorted out at the trial court level
has unnecessarily been dragged through the corridors of several courts. The
challenge in the present appeal is to the order passed by a learned Single
Judge of the Karnataka High Court which has been disposed of under Section
E 115 of the Code of Civil Procedure 1908 (in short the 'CPC'). The respondent
is an Agricultural Produce Market Committee (hereinafter referred to as the
'Market Committee'). The appellant had filed a suit seeking direction for
renewal of the licence in his favour and allotment of the vacant site. The
same was the subject matter of dispute in OS No. I0 I 5 of 1987 on the file
F of the Additional City Civil Judge. Bangalore. Decree passed in the said case
reads as follows:

'"It is ordered and decreed that the defendant is directed to allot a
vacant site in between site No. I0-C and 11 /2 situated at 2nd main
of AMPC Yard to the plaintiff.
G It is further decreed that the defendant is directed to renew the
licence in favour of the plaintiff to carry on business.

It is further decreed that the defendant is further directed that if
any building or maliges are constructed in vacant site in between
sites I0-C and 11/2, the same shall be allotted to the plaintiff."
H
I'. VARADARAJllLU 1·. AGRICUl.Tl ill AL PJ(ODUCF MKT UJ~l,ll ITFE fl' AS.~ YAT. .I.] 681

An application for execution was filed. and the Executing Court also A
cook action against Market Committee for disobedience. The stand of the
Market Committee before and /or subsequent to the decree, and in the
execution proceedings was that the decree was not executable. It appears that
the High Court appointed an Advocate Commissioner to report about the
physical position of the space between site nos. 10/C and 11/2. The High B
Court after receipt of the Advocate Commissioner's report and looking at the
photographs found that the decree was not executable as in its view it refers
to a space not in existence on account of the drainage on the spot. Accordingly
the Civil Revision was allowed.

Learned counsel for the appellant submitted that after having lost not C
only in the suit but the subsequent applications filed before the Executing
court, a frivolous and non-maintainable petition was filed before the High
Court. Unfortunately, the High Court did not take note of the actual state of
affairs and proceeded as if the decree was not executable. With reference to
the sketch map annexed to the report of Advocate Commissioner, it was
submitted that the space was still available and only on the ground that a D
drain existed, the High Court should not have interfered. It was submitted
that if the space as directed i11 the decree is allowed even over the drain, the
appellant is willing to accept it and he will ensure that there is no seepage
of drain water and no inconvenience will be caused and no unhygienic
condition shall be created. It is further submitted that if any unhygienic E
condition is created, then the appellant is willing to accept the alternative
suggestion given by the Market Committee before the High Court regarding
allotment of equally spacious area in nearby available area.

In response learned counsel for the Market Committee submitted that
the High Court has rightly concluded that the decree was not executable as F
no space was available. It was submitted that if the appellant is allowed to
put up any structure over the drain it would lead to insanitary conditions and
rain water may overflow to the various shops.

We find that the basic issues have been lost sight by the High Court.
The sketch map annexed to the report of the Advocate Commissioner shows G
that there is a drain which is of about two feet width and partially lies
between site nos. 11/2 and I O/C, and that there exist sufficient space and
extent of land, even excluding the drainage portion, for satisfying the decree.
The High Cou1t seems to have misread the report and misconstrued the
physical features as disclosed by the report and plan submitted by the H
682 SUPREME COURT REPORTS [2004] 3 S.C.R.

A Commissioner.
We feel that the proper solution to the controversy will be to direct
Market Committee to allot the space between site nos. 11/2 and I O/C which
is vacant, in terms of the decree and if necessary it can even be over the drain
as indicated in the sketch map appended to the Advocate Commissioner's
B report. The statement of learned counsel for the appellant regarding preventive
steps to be taken to avoid seepage of drain water, and non-creation of
unhygienic condition shall be incorporated in an undertaking along with the
agreement expressed in such circumstances to accept alternative allotment as
indicated above and it would be one of the conditions for the allotment,
C directed to be made.
Necessary action be taken within six weeks.

Appeals are allowed and accordingly finally disposed of.

D R.P. Appeals allowed.